Opinion
C085735
12-16-2019
In re E.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.L., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJC-JV-DE-2017-0000163)
The juvenile court sustained a wardship petition under Welfare and Institutions Code section 602 alleging E.L. committed a battery of another student on school grounds (Pen. Code, § 243.2, subd. (a)), and assaulted the student with force likely to cause great bodily injury (§ 245, subd. (a)(4)). Video evidence showed E.L. attacking the girl from behind, swinging her around by her hair, and repeatedly striking her in the head. The court committed E.L. to juvenile hall for 30 days and placed her on probation with various conditions, including that she submit to warrantless searches of her social media accounts.
Further undesignated statutory references are to the Penal Code.
On appeal, E.L. contends insufficient evidence supports the assault because the force used was not likely to cause great bodily injury. She also challenges the social media search condition as unconstitutionally overbroad as applied to her.
We conclude sufficient evidence supports the assault conviction, and that E.L. forfeited her challenge to the social media search condition. We affirm.
BACKGROUND
At the contested jurisdictional hearing, the victim testified that on August 23, 2017, she and E.L. attended the same high school. That morning, E.L. had confronted the victim in the locker room. During lunch time later that day, E.L. came up behind the victim, grabbed her hair, and began swinging her around. E.L. punched the victim in the back of the head between 10 and 20 times. The victim was defenseless, and could not fight back.
After the attack, the victim felt pain in the back of her head and suffered cognitive issues. She had trouble concentrating and had memory loss. Her mother would often have to remind the victim of what she was doing because she would quickly forget. While she had been an average student before the assault, afterward her grades dropped significantly and she was failing her classes.
School video surveillance captured the attack. A video of the assault was also posted on the social media site Instagram. Both videos were admitted as evidence during the hearing.
A school resource officer testified that after waiving her Miranda rights, E.L. admitted she assaulted the victim. According to E.L., the victim had said something bad about her earlier in the day, and when E.L. saw the victim during the lunch break, she decided to attack her. After reviewing the video, the resource officer estimated that E.L. hit the victim in the head in excess of 30 times.
Following the jurisdictional hearing, the juvenile court sustained the wardship petition, finding the People proved beyond a reasonable doubt that E.L. battered the victim on school grounds, and that she assaulted the victim by means of force likely to produce great bodily injury. In so finding, the court noted that the video of the attack was "shock[ing]," and that it was a "miracle" that the victim was not seriously injured.
At the disposition, the juvenile court ordered the minor to serve 30 days in juvenile hall and placed her on probation. The court found E.L.'s conduct extremely disturbing, telling her "if you were a better fighter, then somebody could have been killed. And that was very, very disturbing conduct." As a condition of probation, the court ordered E.L. to submit to search and seizure at any time of day or night, by any probation or peace officer, without the requirement of probable cause or the minor's consent or a search warrant of her person, place of residence or temporary abode, vehicle, personal effects, and social media. E.L. timely appealed.
This was the second time a social media probation condition was imposed. Approximately four months earlier, the juvenile court had released E.L. to her mother's custody under certain conditions, including that E.L.'s social media was subject to warrantless search by probation to ensure that she did not contact the victim or another girl who had assaulted a second victim at the same time and location that E.L. attacked her victim. E.L. did not object to the condition at any time. --------
DISCUSSION
I
Sufficiency of the Evidence
E.L. contends insufficient evidence shows the force she used to assault the victim was likely to produce great bodily injury. We disagree.
Section 245, subdivision (a)(4) provides as relevant here that "[a]ny person who commits an assault upon the person of another by means of force likely to produce great bodily injury shall be punished . . . ."
"The term 'great bodily injury' as used in the felony assault statute means significant or substantial bodily injury or damage . . . ." (People v. Duke (1985) 174 Cal.App.3d 296, 302.) "[I]t does not refer to trivial or insignificant injury or marginal harm." (Ibid.) "One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).) But, physical injuries are "highly probative" of the amount of force used. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
In assessing the sufficiency of the evidence, we "review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Hill (1998) 17 Cal.4th 800, 848.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1119, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is required only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (Johnson, at p. 578.)
Viewing the evidence in the light most favorable to the judgment, we conclude that the juvenile court reasonably could find beyond a reasonable doubt that intentionally striking a person on the back of her head 10 to 20 times, and perhaps more than 30 times, while the person was swung around by the hair from behind and helpless constituted force likely to produce great bodily injury. (People v. Schmidt (1944) 66 Cal.App.2d 253, 256 ["It requires no expert to know that . . . the striking of [a girl's] head with sufficient force to cut her scalp, is likely to cause her serious injury"].) It is beyond dispute that the back of the head represents an extremely sensitive location on the body. It includes not only the brain, but the brain stem, and spinal column, which are essential for proper bodily function. Brain and spinal injuries can be fatal or seriously debilitating.
While E.L. argues that the lack of bleeding or absence of prolonged treatment show the force used was not likely to produce great bodily injury, we are not persuaded. (Cf. People v. Hahn (1956) 147 Cal.App.2d 308, 309-312 [evidence showing that the defendant hit the victim on the back of the head with an empty beer can was sufficient to establish assault with force likely to produce great bodily injury even though head wound did not require sutures or any follow-up treatment].) The fact that the victim's injuries were not more serious does not mean the force exerted was not likely to cause great bodily injury. Although it is true that the severity of an injury is probative, it is not dispositive. (People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066.) Indeed, no injury to the victim is required to sustain an assault with force likely to produce great bodily injury conviction. (Aguilar, supra, 16 Cal.4th at p. 1028 [whether the victim in fact suffers any harm is immaterial].)
Here, the evidence showed the victim was injured. Before the assault she was an average student; after the attack, she had trouble concentrating, her memory was faulty, and her grades dropped significantly. Based on the video evidence showing the assault and the victim's testimony, the juvenile court could reasonably conclude that the repeated strikes to the back of the victim's head caused her cognitive injuries. Even if such evidence were disregarded as uncorroborated as E.L. argues it should be, the court was amply justified in finding 20 blows or more to the back of a defenseless person's head would likely produce great bodily injury.
That E.L. struck the victim with her fist rather than a weapon also does not mean that the force used was unlikely to produce great bodily injury. As E.L. concedes, it is well established that "the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury . . . .' " (Aguilar, supra, 16 Cal.4th at p. 1028.)
Under the circumstances of this case, the juvenile court could reasonably conclude that the force E.L. exerted on the victim by repeatedly hitting her in the back of the head while pulling her by her hair was likely to cause great bodily injury. That the evidence might arguably be reconciled with a contrary finding does not warrant a reversal of the judgment given the parameters of our review. (People v. Hill, supra, 17 Cal.4th at p. 849.)
II
Social Media Search Condition
E.L. argues that the probation condition permitting warrantless searches of her social media is unconstitutionally overbroad. While she did not object to the condition at any point in the juvenile court, she now asks this court to exercise its discretion to consider the claim for the first time on appeal. The People argue she forfeited her claim, and alternatively that the condition is not overbroad.
Ordinarily, "a constitutional right, or a right of any sort," may be forfeited in a criminal case by failing to timely assert the right before a tribunal having jurisdiction to determine it. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 889 [not all constitutional defects in probation conditions may be raised for the first time on appeal; traditional objection and waiver principles apply to constitutional claims that cannot be resolved without reference to the particular sentencing record developed in the trial court].) Facial overbreadth challenges to probation conditions constitute a narrow exception to this general forfeiture rule. (Sheena K., at pp. 887-888.) This is because a facial overbreadth error constitutes a pure question of law that is easily correctable on appeal by modifying the condition without examining the trial record. (Ibid.)
E.L.'s claim here is not a facial one, but rather a challenge to the condition as applied to her. Her argument on appeal makes clear that the success of her challenge depends on the record developed in the juvenile court. She does not argue that a condition permitting warrantless searches of her social media accounts would not be warranted under any circumstances. Instead, she argues that her specific circumstances were not sufficient to warrant the condition's imposition. She argues use of social media accounts does not relate in any way to her assaultive conduct and there was no evidence linking her to the Instagram video of the assault that was posted online. Such a challenge constitutes an as applied rather than a facial overbreadth challenge. Had she made the challenge below, the trial court could have made findings as to the evidence before it or garnered additional evidence to determine whether the condition was reasonable given the specifics of the minor's conduct, criminality and personal history. (See People v. Lent (1975) 15 Cal.3d 481, 486 ["A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality' "]; In re Ricardo P. (2019) 7 Cal.5th 1113, 1118-1119 [applying Lent test].)
While it is true that appellate courts have discretion to consider a forfeited claim (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; see also, In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7 [an appellate court may review a forfeited claim, and whether or not it should do so is entrusted to its sound discretion]), that discretion should be exercised rarely and only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We decline to do so here. Considering such a fact-based issue "for the first time on appeal is often unfair to the trial court, unjust to the opposing party, and contrary to judicial economy because it encourages the embedding of reversible error through silence in the trial court." (In re M.H. (2016) 1 Cal.App.5th 699, 713-714.)
By failing to object to the challenged condition in the juvenile court, E.L. has forfeited her appellate challenge to the condition.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Murray, Acting P. J. /s/_________
Krause, J.